Fair Use Face-Off, Canadian Edition

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As professors and librarians in the United States await a judge’s ruling on a copyright lawsuit by publishers against Georgia State University over its e-reserves practices, a similarly themed battle in Canada has seen a number of high-profile research universities walk out on licensing agreements with that country’s major copyright clearinghouse.

More than a dozen Canadian universities — including heavyweights such as the University of British Columbia, the University of Calgary and York University — have said they will not renew their agreements with Access Copyright, a government-created nonprofit that sells licenses to its library of copyright-cleared content.

The idea of the licenses is to allow professors to include copyrighted works among their course materials without having to ask permission from copyright holders at every turn. But with Access Copyright vying to more than double the fee for its “comprehensive licenses” from $18 to $45 per student, and asking that the organization be allowed to survey their clients' private networks so as to ensure compliance, many universities say they would be happier to drop the clearinghouse licenses and go it alone.

The Access Copyright donnybrook and Georgia State lawsuit are unfolding in vastly different legal environments. Canadian copyright law does not include “fair use” exemptions for teaching; its “fair dealing” exemptions provide no special dispensation for educators and only protect scholars who want to make copies for “private study.” The standards Access Copyright is using to define "copies" of digital of works — which include storing a copyrighted work on a local device, displaying a copyrighted work on a computer screen, even posting a hyperlink to a copyrighted work without consent — are draconian even compared to the much-ballyhooed standards sought by the publishers suing Georgia State. (And, for obvious jurisdictive reasons, the outcome of each case will not have any legal bearing on the other.)

Yet the two cases are similar in that they involve standoffs between copyright clearinghouses — the Georgia State lawsuit is being partially underwritten by the Massachusetts-based Copyright Clearance Center, which plays a similar role stateside as Access Copyright's Canada — that are trying assert themselves in an increasingly digital world, and universities that claim that they are overreaching.

The copyright clearinghouses have an interest in pushing for strict interpretations of copyright law in the digital realm because it would make them more valuable to universities, says Brandon Butler, the director of public policy initiatives for the Association of Research Libraries. But the potential cost to universities of abiding by the standards laid out in Access Copyright’s proposal and those sought by publishers in the Georgia State lawsuit (which is also backed by the Association of American Publishers) are making some institutions wonder just how indispensable those clearinghouse licenses are, he says.

“I think in both the Copyright Clearance Center case and the Access Copyright case, the universities are getting skeptical about whether it’s a good deal,” says Butler. “Do I need to buy this blanket coverage, or can I get by [without it]?”

For the University of British Columbia, the fee hike being sought by Access Copyright would increase the university’s annual payment to the clearinghouse from $650,000 per year to $2 million, according to David H. Farrar, the provost there. (Access Copyright has not yet received the necessary regulatory approval to up its fee, but the Copyright Board of Canada has granted it temporary permission to impose the new pricing model while the board conducts a review.) In a broadcast e-mail to the campus earlier this month, Farrar called the new licensing conditions “unacceptable.”

The university also objected to Access Copyright’s proposal that it should be granted full access to the campus and its secure networks to survey the materials posted to course websites and elsewhere — a condition that also drew the ire of the Canadian Association of University Teachers (CAUT), which is concerned that such monitoring might compromise the privacy of the association’s members. The association also opposes the fee hike — not because it places an untenable financial burden on universities, but because the CAUT finds unseemly the idea of Access Copyright charging such high rates and then spending the proceeds on lobbying for stricter copyright laws, says James Turk, CAUT’s executive director.

The University of British Columbia will be ending its deal with Access Copyright, effective Thursday. The task of clearing copyrights for course packs has been delegated to the campus bookstore, which binds and sells the packs; faculty who want to post outside materials to course websites are urged to clear copyrights themselves. The university says its break with Access Copyright does not mean it plans to turn a blind eye to potential violations, as some have suggested. “Infringing copyright is a serious matter and UBC requires each of its faculty, staff and students to comply with copyright law,” the university says in an online primer, which Farrar linked to in his memo about the Access Copyright decision.

Officials at Access Copyright say they do not think universities can clear all copyrights on their own. “We believe it will be exceptionally challenging for an institution to ensure that every work is cleared,” wrote Erin Finley, the organization’s manager of legal services, in an e-mail to Inside Higher Ed. “To do so, an institution will have to clear all permissions every time a professor uploads a chapter to a course management website or hands out a photocopy of an article in class. If even one copy slips through the cracks, the institution is liable to pay the entire tariff.”

Access Copyright purposefully proposed the highest possible fee increase, said Finley. The Copyright Board might decide that $45 per student is unreasonable, and approve the new licensing conditions based on a lower rate. The board might also walk back Access Copyright’s proposed standards for defining a “copy” in the digital realm, she said. (For example, the question of whether a hyperlink counts as a digital copy is “unsettled in Canadian law.”)

In the absence of settled law on where copyright law applies in the context of digital teaching and learning, copyright clearinghouses and publishers have an interest in fueling a culture of uncertainty among professors and librarians, says Patricia Aufderheide, a communications professor and “fair use” expert at American University.

“I think that vendors in general, and their associations, would like to represent the situation as: anything but full licensing, all the time, for every new use, is infringing,” Aufderheide told Inside Higher Ed. The larger the gray area, the more necessary a copyright clearinghouse’s services appear to be, she says. “Nobody who works for a large institution wants to see that institution at risk.”

Turk says he expects the Copyright Board of Canada to make a decision on Access Copyright's proposed licensing conditions sometime in the next year. A U.S. district court judge is expected to rule on the Georgia State case this fall.